The juvenile court found youth, at age 15, to be within the jurisdiction of
the court on the ground that youth had committed acts that would be crimes if committed
by an adult. ORS 419C.005. The juvenile court's order finding jurisdiction and making a
disposition was entered in the trial court register on March 1, 2000. Under ORS
419A.200(3)(c), youth had 30 days from that date to file a notice of appeal from the order.

Youth was represented in the juvenile court by counsel. In an affidavit
submitted to this court, counsel swears that on March 3, 2000, she prepared a notice of
appeal on behalf of youth and hand delivered the notice of appeal to "the Court of
Appeals, Supreme Court Building." We take that to mean that counsel hand delivered the
notice of appeal to the Office of the State Court Administrator's Records Section, located
in the Supreme Court building, the entity that functions as the clerk for the Court of
Appeals. There is, however, no extrinsic corroboration of counsel's representation. We
note, moreover, that the copy of the notice of appeal that was served on the trial court
administrator, which stated that the notice was being served on March 3, was not actually
received by the trial court until April 4, 2000. We conclude that, in the circumstances
presented here, counsel's affidavit, without more, is insufficient to establish that the
notice of appeal was timely filed.

After the juvenile department filed its memorandum, we decided Hammons.
In Hammons, the mother in a termination case contended that her attorney's filing of an
untimely notice of appeal constituted inadequate assistance of counsel and that, under
Geist, she was entitled to pursue her appeal. We concluded that the counsel's failure
constituted inadequate assistance; that there was no adequate remedy for that default; and
that the mother sought her delayed appeal within a reasonable period of time. Hammons,
169 Or App at 593-97. We further concluded that the mother had demonstrated a
"colorable claim of error" in the underlying termination proceeding and, thus, was entitled
to prosecute a delayed appeal. Id. at 598. After Hammons, we invited the present parties
to address Hammons's application to this case.

Youth has established inadequate assistance of counsel in that youth's trial
counsel did not timely file a notice of appeal from the juvenile court's order; at least,
counsel has not demonstrated to our satisfaction that she did so. However, the juvenile
department argues--and we agree--that a mere showing of inadequate assistance in that
regard is insufficient by itself to trigger an entitlement to a delayed appeal. Rather, and
by direct analogy to Hammons, youth must also show: (1) a colorable claim of error in the
underlying delinquency proceeding; and (2) that youth's ultimately filed notice of appeal
was filed within a reasonable time.

With respect to whether youth has shown a colorable claim of error in the
underlying delinquency proceeding, youth asserts that "there is an issue of whether the
state proved that appellant was guilty." We review cases arising from juvenile court de
novo, ORS 419A.200(3)(c), and, given that this is a delinquency case, we review the
sufficiency of the state's proof using the "beyond a reasonable doubt" standard. See, e.g.,
State ex rel Juv. Dept. v. Millican, 138 Or App 142, 144, 906 P2d 857 (1995), rev den
323 Or 114 (1996). We understand youth to contend that, in light of that standard of
review and burden of proof, he has established a colorable claim of error merely by
stating his intent to challenge the sufficiency of the evidence.

Part of the context of the legislature's use of the phrase "colorable claim of
error" is case law in existence when the legislature adopted the phrase. The legislature
first used that phrase in ORS 183.482(3), relating to stays of agency orders in contested
cases pending judicial review, and it appears to be a statutory codification of this court's
decision in Von Weidlein/N.W. Bottling v. OLCC, 16 Or App 81, 515 P2d 936 (1973). In
that case, the court characterized "colorable claims" as contentions that "appear to be
substantial" or "non-frivolous." Id. at 89. As is evident from the court's decisions in Von
Weidlein/N.W. Bottling, and another case, Evans v. OSP, 87 Or App 514, 525-526, 743
P2d 168 (1987), a prison disciplinary order case, a "colorable claim of error" is something
less than a showing that the petitioner is reasonably likely to prevail on appeal.
Combining the dictionary definition of "colorable" with the characterization of "colorable
claims" in Von Weidlein/N.W. Bottling, it appears that the legislature may have intended
"colorable claims of error" to mean seemingly valid, genuine, or plausible claims of error
or substantial and nonfrivolous claims of error.

In determining what constitutes a colorable claim of error in the context of
this case, we find helpful a trilogy of cases relating to the circumstances under which a
party entitled to appointed counsel on appeal also is entitled to a transcript at state
expense.

Under ORS 138.500(3), an indigent defendant on appeal in a post-conviction relief case is entitled to only so much of the transcript as is "necessary" for the
appeal. In SER Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979), the court rejected the
appellate counsel's contention that, merely because the counsel is new to the case, the
counsel is absolutely entitled to a transcript at state expense. Rather, the court held that a
trial court reasonably may require some showing of the defendant's contentions on appeal.
The court also held that the appellate counsel may discern those grounds by consulting
with the trial counsel, by interviewing the client, or by examining the trial file. The court
also held that the trial counsel has a duty to assist the appellate counsel in determining
possible grounds for appeal, a holding we reiterate here. Id. at 187. In administering that
standard, we bear in mind Acocella's admonition that even a trial counsel would have
difficulty "trying to recall all of the potential grounds for appeal from a judgment
rendered weeks or months ago, to specify where in the proceedings the errors occurred,
and to present that information to the court, all without the benefit of a transcript." Id. At
190. Where, as in most appeals arising from juvenile court, new counsel is appointed to
handle the appeal, "the court cannot expect counsel to quote the exact language of an
allegedly prejudicial remark, or to locate an error in the record with pinpoint precision."
Only if the court processes motions for a delayed appeal with a tolerant appreciation for
the task confronting appellate counsel can would-be appellants be assured the same
opportunity for appellate review as the appellant whose attorney timely filed a notice of
appeal. See id. at 190-91.

Again, borrowing from another appellate transcript case, State v. Bonner, 66
Or App 1, 4, 672 P2d 1333 (1983), an appellant must somehow indicate to this court
intended or possible contentions on appeal. Further, appellate counsel's affidavit in
support of a motion for a delayed appeal should reflect contact with trial counsel and, in
reasonable detail, trial counsel's efforts to assist, including trial counsel's recollections of
specific trial court rulings on objections, jury instructions given or requested and pretrial
motions and rulings. See id. at 5. As the court suggested in Bonner, we ought not subject
a counsel's affidavit to extraordinary scrutiny and, in the absence of any evidence to the
contrary, a counsel is entitled to a presumption that representations of reasons for needing
the transcript are made honestly and in good faith. See id. at 6.

Lastly, as the court held in State v. Richter, 140 Or App 1, 914 P2d 703, rev
den 323 Or 691 (1996), a third case involving a claimed right to a transcript on appeal,
the duty of an appellate counsel to search the record for possible error does not
automatically translate into a right to a transcript at state expense. Rather, the counsel
still must identify some cognizable claim of error. Where, as here, there are multiple
charges and a trial presumably including motions and evidentiary objections, it should not
be burdensome for the appellate counsel in consultation with the trial counsel to identify
at least one cognizable claim of error, if one exists. Seeid. at 5-6.

In this case, youth's attorney has asserted merely that he intends to challenge
the sufficiency of the evidence. He does not identify in what respect the evidence is
insufficient. For example, he does not assert that there was a complete failure of proof
with respect to any essential element or explain why, on de novo review, the evidence
does not persuasively establish that youth committed the alleged acts. Therefore, youth's
motion to permit a late notice of appeal must be denied. However, because the court is
announcing in this decision its standard for determining a colorable claim of error, the
court gives youth leave to renew his motion based on a more detailed showing of any
claims of error youth may assert on appeal.

"(4)(a) Upon motion of a person, other than the state, entitled to
appeal under subsection (1) of this section, if the person was not
represented by counsel in the proceeding from which the appeal is being
taken, the appellate court shall grant the person leave to file a notice of
appeal after the time limits described in subsection (3) of this section if the
person shows a colorable claim of error in the proceeding from which the
appeal is taken.

"* * * * *

"(c) The request for leave to file a notice of appeal after the time
limits prescribed in subsection (3) of this section shall be filed no later than
90 days after entry of the order being appealed and shall be accompanied by
the notice of appeal sought to be filed. A request for leave under this
subsection may be filed by mail and shall be deemed filed on the date of
mailing if the request is mailed as provided in ORS 19.260.

"(d) The court shall not grant relief under this subsection unless the
state has notice and opportunity to respond to the person's request for
relief."

Youth is not entitled to relief under that statute because youth was "represented by
counsel in the proceedings from which the appeal is being taken, * * *" ORS
419A.200(4)(a), and the notice of appeal was filed beyond the 90-day "grace period"
specified in ORS 419A.200(4)(c).

"Except as provided in ORS 419C.613, the court may modify or set
aside any order made by it upon such notice and with such hearing as the
court may direct."

We have not had occasion to consider whether a juvenile court may rely on ORS
419C.610 for the purpose of reentering a judgment or other appealable disposition solely
for the purpose of allowing an aggrieved party to pursue an otherwise late appeal. But cf.
Far West Landscaping v. Modern Merchandising, 287 Or 653, 601 P2d 1237 (1979)
(holding that a trial court may not set aside and reenter a judgment pursuant to ORCP 71
for the sole purpose of permitting a party to take an otherwise late appeal).

3. In State ex rel Juv. Dept. v. Charles/Austin, 106 Or App 628, 810 P2d 389,
rev den 312 Or 150 (1991), we held that Geist would be extended to juvenile dependency
cases for the purpose of permitting the appellant to raise a claim of inadequate assistance
of counsel on direct appeal.

5. As noted above, ORS 419A.200(4) authorizes this court under prescribed
circumstances to permit an otherwise untimely appeal to go forward in a juvenile court
case. ORS 138.071(4) authorizes this court under prescribed circumstances to permit an
otherwise untimely appeal to go forward in a criminal case. Although there are
differences between those statutes, they share at least one common element: Both statutes
require that the appellant filed a motion for delayed appeal within 90 days after the date
of entry of the judgment being appealed.

6. The other three statutes are: ORS 138.071(4) (authorizing delayed appeals
in post-conviction relief cases); ORS 183.482(3) (authorizing stays of enforcement of
agency orders in contested cases pending judicial review); and ORS 197.845(1)
(authorizing the Land Use Board of Appeals to grant stays of land use decisions being
reviewed in that tribunal).